Financial Services and General Government Appropriations Act, 2017
Floor Speech
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Mr. HUIZENGA of Michigan. Mr. Chairman, I yield myself such time as I may consume.
Section 1502 of the Dodd-Frank Act requires the Securities and Exchange Commission to issue a rule mandating that public companies disclose whether the minerals they use benefit armed groups in the Democratic Republic of Congo, also known as the DRC, and its nine neighboring countries.
``Conflict materials'' refer to tin, tungsten, tantalum, and gold, which have been used in a huge variety of products, from cell phones, cosmetics, jewelry, chemicals, footwear, and including auto parts made right in west Michigan.
Simply put, section 1502 produced a rule that has failed everyone, and my amendment would, therefore, suspend its implementation for 1 year. The people of central Africa don't want it. President Obama's own SEC chair doesn't want it. Parts of the rule have been judged by the courts to violate First Amendment rights, and businesses throughout America are burdened with a reporting task that even the Department of Commerce has admitted is impossible.
Recently, the European Union--apparently sobered by other own experience in the U.S.--rejected this approach to conflict minerals. It is easy to see why they did so.
As we debate this amendment, let's be clear on what this isn't about. It is not about who cares more about the plight of the Congolese more, a population that continues to suffer violence at the hands of rebel groups. The question is whether a window dressing disclosure rule at the SEC is the way to address this problem. If we truly care about peace in central Africa, then good intentions aren't enough. We have to demand results, Mr. Chairman.
Sadly, we have gotten the wrong kind of results from section 1502. Recently, I spoke with some missionaries from my own denomination who confirmed this. However, let's start by highlighting the voices of those who too often go unheard in this debate--the voices of the Africans themselves.
I include in the Record an open letter from 70 Congolese leaders and other regional experts who wrote:
``But in demanding that companies prove the origin of minerals sourced in the eastern DRC or neighbouring countries before systems able to provide such proof have been put in place, conflict mineral activists and resultant legislation--in particular Section 1502 of the Dodd-Frank Act--inadvertently incentivize buyers on the international market to pull out of the region altogether and source their minerals elsewhere.
``As a result, the conflict minerals movement has yet to lead to meaningful improvement on the ground, and has a number of unintended and damaging consequences.''
According to a Washington Post article titled ``How a well- intentioned U.S. law left Congolese miners jobless,'' section 1502 ``set off a chain of events that has propelled millions of miners and their families deeper into poverty,'' with many miners forced to find other ways to survive, including by joining armed groups.
This article goes on to share the story of a Congolese teenager who actually joined a militia because mining could no longer put food on his table. ``If we were earning money more from mining, I would not have entered the militia,'' he said.
I ask my colleagues to remember the Congolese, who aren't alone in their suffering. The SEC rule applies to nine other African nations as if they were all a single country. Section 1502 treats over 230 million people living in 10 distinct nations as one undifferentiated group.
Little wonder that Africans themselves take issue with Washington's one-size-fits-all mentality. In testimony to the Financial Services Committee last November, Rwanda's Minister of State for Mining, Evode Imena, noted that--despite Rwanda's actions to strengthen due diligence in its mining sector, and despite the fact that Rwanda has no armed groups in the first place--``the region is now suffering from an `Africa-free' and not a `conflict-free' minerals situation. Section 1502 has caused a de facto boycott by companies in the U.S. and much of Europe on most of our valuable resources.'' This disaster ``has largely impacted the livelihood of thousands of miners and their families . . .''
The words of Africans harmed by this rule should be enough for us to suspend it. But if we need more evidence of section 1502's failures, let's take a look at hard numbers.
A GAO study found last year that not a single company sampled could determine whether its minerals supported armed groups. Professor Jeff Schwartz of the University of Utah Law School has come to a similar conclusion, after reviewing 1,300 filings under section 1502.
Additionally, I wrote to SEC Chair White asking for a detailed description of the funds and hours expended to date on the SEC conflict minerals disclosure rule. In the SEC response letter, she stated that from July 2010 to March 16, 2015, the SEC spent over 21,000 hours and approximately $2.7 million on this particular provision which the SEC has little to no experience with.
Given the lack of benefits from this rule, it is no wonder SEC Chair Mary Jo White has said:
``Seeking to improve safety in mines for workers or to end horrible human rights atrocities in the Democratic Republic of the Congo are compelling objectives, which, as a citizen, I wholeheartedly share. But, as the Chair of the SEC, I must question, as a policy matter, using the federal securities laws and the SEC's powers of mandatory disclosure to accomplish these goals.''
I agree with the SEC, and I appreciate support for this amendment. An Open Letter
Dear governments, companies, non-governmental organisations, and other stakeholders implicated in efforts of various kinds related to the issue of `conflict minerals': In early 2014, two international industry giants--Intel and Apple--issued refined corporate social responsibility policies for minerals sourced in the eastern Democratic Republic of the Congo (DRC). The announcements followed an unprecedented wave of guidelines, law-making, and initiatives over the past few years to `clean up' the eastern DRC's mining sector, and were met with widespread praise.
Perhaps the most widely publicised of these efforts is US legislation known as Section 1502 of the Dodd-Frank Act, which asks all companies registered on the US stock market to reveal their supply chains to the Securities and Exchange Commission (SEC) when sourcing minerals from the eastern DRC or neighbouring countries. Canada is in the advanced stages of developing similar legislation, and many other countries are looking closely at the issue. The European Union has introduced a voluntary conflict minerals regulation scheme for all member states, and the United Nations (UN) and Organisation for Economic Cooperation and Development (OECD) have developed guidelines on sourcing natural resources in high-risk areas such as the eastern DRC.
These efforts primarily target artisanal (or `informal') mining in the eastern DRC, due to widespread international recognition that so-called conflict minerals (most notably tin, tantalum, tungsten, and gold) produced by artisanal mining in this part of the world have helped conflict actors generate revenue to finance their operations in the DRC over the past two decades. The Situation
Despite successes of activists in shaping policy, the conflict minerals campaign fundamentally misunderstands the relationship between minerals and conflict in the eastern DRC. First, while the minerals help perpetuate the conflict, they are not its cause. National and regional political struggles over power and influence as well as issues such as access to land and questions of citizenship and identity are just some of the more structural drivers of conflict. The ability to exploit and profit from minerals is often a means to finance military operations to address these issues, rather than an end in itself. Internal UN assessments, for instance, show that only 8% of the DRC's conflicts are linked to minerals, and specific motivations vary greatly across the vast array of different armed groups.
Second, armed groups are not dependent on mineral revenue for their existence. The eastern DRC is a fully militarised economy, in which minerals are just one resource among many that armed groups--and the national army FARDC--can levy financing from. The M23, until recently the most powerful non-state armed group in DRC, never sought physical control over mining activity.
Moreover, few local stakeholders have been included in on- going international policy-making, and as a result realities on the ground have not always been taken into account. Setting up the required systems and procedures to regularly access and audit thousands of artisanal mining sites in isolated and hard-to-reach locations spread across an area almost twice the size of France would be a challenge for any government. In the eastern DRC, where road infrastructure is poor to non-existent and state capacity desperately low, the enormity of the task is hard to overstate. But in demanding that companies prove the origin of minerals sourced in the eastern DRC or neighbouring countries before systems able to provide such proof have been put in place, conflict minerals activists and resultant legislation--in particular Section 1502 of the Dodd-Frank Act--inadvertently incentivize buyers on the international market to pull out of the region altogether and source their minerals elsewhere. The Result
As a result, the conflict minerals movement has yet to lead to meaningful improvement on the ground, and has had a number of unintended and damaging consequences. Nearly four years after the passing of the Dodd-Frank Act, only a small fraction of the hundreds of mining sites in the eastern DRC have been reached by traceability or certification efforts. The rest remain beyond the pale, forced into either illegality or collapse as certain international buyers have responded to the legislation by going `Congo-free'.
This in turn has driven many miners into the margins of legality (for instance, feeding into smuggling rackets), where armed actors return through the loopholes of transnational regulation. Others have simply lost their jobs, and in areas where mining has ceased, local economies have suffered. To put this in context, an estimated eight to ten million people across the country are dependent on artisanal mining for their livelihood. Some former miners have returned to subsistence agriculture, but persisting insecurity levels leave them in abject poverty facing dire living conditions, in fear of missing harvests due to displacement. Others have been prompted to join militias as a means to quick cash in the absence of other opportunities; a particularly perverse impact, when one considers the intentions of the movement.
Alongside the impact on mining communities and local economies, several armed groups have responded by turning to different businesses such as trading in charcoal, marijuana, palm oil, soap, or consumer goods. Those remaining in the mining sector have largely traded mineral exploitation on site for mineral taxation a few steps down the supply chain, operating numerous roadblocks that can bring in millions of dollars a year. Others are reported to have sent in family members or civilian allies to run business for them on site, while they remain safely at a distance.
For the few mining sites fortunate enough to be reached by Joint Assessment Teams responsible for determining their `conflict-free' status, these teams have been unable to provide the regular, three-month validation visits envisaged in legislation. There is an additional delay of several months following these visits before the Congolese Ministry of Mines reviews and approves the assessment at the national level. Given the speed at which situations can change in volatile environments, infrequent assessments and lengthy delays raise concerns over the accuracy of certification and the credibility of the system.
More worrying still, multinational corporations such as Apple and Intel are auditing smelters to determine the conflict-free status of the minerals they source, and not the mines themselves. As smelters are located outside of the DRC and audits are not always conducted by third parties, these processes raise further concerns over whether conflict-free certifications reflect production realities.
By far the most advanced site in terms of producing `conflict-free' minerals for sale to the international market is Kalimbi, a tin mining area home to externally-financed initiatives running an industry-led bagging-and-tagging scheme called iTSCi. Yet even here, despite the establishment of a `closed pipeline' from mine to exportation, the mine still suffers from the sporadic influence of armed actors, and miners are made to bear the additional costs of `conflict-free' schemes. This raises further concerns over the credibility of the system in place, and its suitability for the scale-up and expansion to other, more remote mine sites currently underway. Coupled with slow progress in implementation, the trend towards the monopolisation of `conflict-free' supply chain initiatives, in particular traceability by iTSCi, is economically damaging to local populations since it currently excludes and isolates the overwhelming majority of mining communities from legal access to international markets. The Alternative
There is broad consensus for the need to clean up the eastern Congo's minerals sector, yet much disagreement about the international community's current model for achieving this goal. As such, efforts to improve transparency in the eastern DRC's mineral supply chains should continue. Yet a more nuanced and holistic approach that takes into account the realities of the eastern DRC's mining sector and the complexity of the conflict is needed. To this end, we make the following five recommendations:
Improve consultation with government and communities: Congolese government and civil society were poorly consulted on Section 1502 of the Dodd-Frank Act prior to its passing, and as a result many were unaware of its implications. The few who were consulted were unanimously pro-Dodd-Frank, creating additional conflicts on local levels where endorsement and dissent compete. More Congolese voices must be listened to, and the local context and power structures taken into account. This would ensure greater understanding of the local context and better harmonisation with existing national and regional initiatives, such as the International Conference of the Great Lakes Region's (ICGLR) Regional Initiative against the Illegal Exploitation of Natural Resources.
Work towards meaningful reform: The audit process should be designed to improve policies and practices rather than to just provide window-dressing. The dominant belief that static oversight and validation processes ensure `conflict-free' mineral trade is misplaced given the volatile security situation in most of the eastern DRC. Both mines and smelters should be regularly inspected and the time period between inspection and certification minimized. Where this is not feasible, additional waivers or similar measures should not be ruled out.
Create incentives towards better practice: Legal frameworks must be supported by real projects on the ground that can meet their requirements. If this is not possible--which is clearly still the case today, nearly four years after the passing of Dodd-Frank--then transition periods must be extended and the lowering of excessively high standards for `conflict-free' minerals should be considered. Similarly, former conflict actors should be incentivised where appropriate to join new `conflict-free' schemes. This may help avoid the eventual subversion or infiltration of the `clean' system put in place, as has been seen to date.
Promote fair competition: Regulation must be based on competition that allows not only international businesses but also Congolese producers to influence (i.e. increase) local price schemes. This in turn would encourage a regime that ensures minimum wages which mining cooperatives can guarantee to their members based on their increased leverage on the price fluctuation.
Widen the lens: Root causes of conflict such as land, identity, and political contest in the context of a militarized economy, rather than a single focus on minerals, must be considered by advocates seeking to reduce conflict violence. Furthermore, efforts to eradicate conflict minerals should not overlook the fact that artisanal mining is a key livelihood in the eastern DRC that holds as much potential to help steer the region away from conflict as it does to contribute towards it. More supportive measures are needed-- such as those found in the earlier 2009 draft of the US Conflict Minerals Act--that can help capture the economic potential of artisanal mining. Finally, other critical challenges such as access to credit, technical knowledge, hazardous working conditions, and environmental degradation should not be ignored by multinational corporations if they seek to improve business practices and increase transparency in their supply chains.
So far, progress has been made in producing more ethical products for consumers, but stakeholders have not yet proceeded to improve the lives of Congolese people, nor address the negative impact current `conflict-free' initiatives are having. If the conflict minerals agenda is to lead to positive change on the ground, legislation passed by national governments and steps such as those outlined by Apple or Intel need to be grounded in a more holistic approach that is better tailored to local realities. Failure to do so will continue to seriously limit the ability of conflict minerals initiatives to improve the daily lives of the eastern Congolese and their neighbours. Worse, these initiatives will risk contributing to, rather than alleviating, the very conflicts they set out to address. List of Signatories
1. Aloys Tegera (Director, POLE Institute Goma)
2. Ann Laudati (Lecturer at the School for Geographical Sciences, University of Bristol)
3. Ashley Leinweber (Assistant Professor of Political Science, Missouri State University)
4. Ben Radley (Researcher, International Institute of Social Studies & `Obama's Law' Producer)
5. Bonnie Campbell (Professor of Political Science, Universite du Quebec a Montreal)
6. Christiane Kayser (Independent Analyst & Civil Peace Service-Bread for the World mobile team)
7. Christoph Vogel (Researcher, University of Zurich & Independent analyst/writer)
8. Cyprien Birhingingwa (Executive Secretary, COSOC-GL & Coordinator of CENADEP Kivu)
9. Daniel Rothenberg (Professor of Practice, School of Politics and Global Studies, Arizona State University)
10. David Rieff (Independent Author and Commentator)
11. Deo Buuma (Executive Secretary, Action pour la Paix et la Concorde--APC, Bukavu)
12. Didier de Failly s.j., (Directeur, Maison de Mines du Kivu, Bukavu)
13. Dominic Johnson (Africa Editor and Deputy Foreign Editor, die tageszeitung)
14. Dorothea Hilhorst (Professor of Humanitarian Aid and Reconstruction, Wageningen University)
15. Emmanuel Shamavu (Director, APRODEPED, Bukavu)
16. Eric Kajemba (Coordinator, Observatoire Gouvernance et Paix, Bukavu)
17. Esther Marijnen (Researcher, Institute for European Studies/Vrije Universiteit Brussel)
18. Evariste Mfaume (Executive Director, ``Solidarite des Volontaires pour l'Humanite'')
19. Gabriel Kamundala (Researcher, CEGEMI & Universite Catholique de Bukavu)
20. Ganza Buroko (Cultural Operator & Coordinator of Yole!Africa, Goma)
21. Godefroid Ka Mana (Professor, ULPGL Goma & UEA Bukavu & Universite Kasavubu Boma)
22. Godefroid Muzalia (Professor, Institut Superieur Pedagogique de Bukavu)
23. Henning Tamm (Postdoctoral Prize Research Fellow, Nuffield College, University of Oxford)
24. Herbert Weiss (Emeritus Professor of Political Science, City University of New York)
25. James Smith (Associate Professor of Anthropology, University of California/Davis)
26. Jean Ziegler (Former UN Special Rapporteur for the Right to Food and Professor at University of Geneva)
27. Jeroen Cuvelier (Postdoctoral Researcher, Wageningen University and Ghent University)
28. John Kanyoni (Independent Consultant and Vice-President of the Congolese Chamber of Mines)
29. Josaphat Musamba (Assistant Professor, Universite Simon Kimbangu of Bukavu)
30. Joschka Havenith (Independent Researcher and Consultant, Cologne)
31. Jose Diemel (Researcher, Special Chair for Humanitarian Aid & Reconstruction, Wageningen University)
32. Joshua Walker (Postdoctoral Research Fellow, University of the Witwatersrand)
33. Josue Mukulumanya (President of the South Kivu mining cooperatives board GECOMISKI)
34. Justine Brabant (Independent Researcher and Journalist)
35. Juvenal Munubo (Member of Parliament, Democratic Republic of the Congo)
36. Juvenal Twaibu (Director, Centre Independant de Recherches et d'Etudes Strategiques au Kivu)
37. Ken Matthysen (Researcher on artisanal mining in eastern Congo, Antwerp)
38. Kizito Mushizi (Member of Parliament, Democratic Republic of the Congo)
39. Koen Vlassenroot (Director, Conflict Research Group & Professor, Ghent University)
40. Kris Berwouts (Independent Consultant and Author)
41. Kristof Titeca (Assistant Professor, University of Antwerp)
42. Laura Seay (Assistant Professor of Government, Colby College)
43. Ley Uwera (Independent Journalist and Author, Goma)
44. Loochi Muzaliwa (Programme Coordinator, Life and Peace Institute DRC)
45. Micheline Mwendike (Activist, on behalf of LUCHA--Lutte pour le Changement/Struggle for Change)
46. Manuel Wollschlager (Conseiller Technique, ZFD-AGEH in Bukavu)
47. Milli Lake (Assistant Professor, Arizona State University)
48. Nicole Eggers (Assistant Professor of African History, Loyola University New Orleans)
49. Odile Bulabula (Deputy Coordinator, RIO--Network for Organisational Innovation, Bukavu)
50. Padraic MacOireachtaigh (Regional Advocacy and Communications Officer, Jesuit Refugee Service)
51. Pamela Faber (Researcher, St. Catherine's College, University of Oxford)
52. Passy Mubalama (Independent Journalist and Author, Goma)
53. Paul Muhindo Mulemberi (Member of Parliament, Democratic Republic of the Congo)
54. Paul-Romain Namegabe (Professor of Law, Director of CEGEMI, Universite Catholique de Bukavu)
55. Paulin Bishakabalya (Director of Humanitarian Assistance and Development Committee, Bukavu)
56. Peer Schouten (Postdoctoral Researcher, University of Gothenburg)
57. Phil Clark (Reader in Comparative and International Politics, SOAS/University of London)
58. Rachel Niehuus (Postdoctoral Researcher at University of California, San Francisco)
59. Rachel Strohm (Researcher in Political Science, University of Berkeley)
60. Raf Custers (Independent Journalist and Author on Mining)
61. Remy Kasindi (Director, Centre for Research and Strategic Studies in Central Africa, Bukavu)
62. Rodrigue Rukumbuzi (Coordinator, AGAPE-Hauts Plateaux, Uvira)
63. Rosebell Kagumire (Independent Consultant and Blogger, Kampala/Addis Ababa)
64. Salammbo Mulonda Bulambo (Director, PIAP, Bukavu)
65. Sara Geenen (Postdoctoral Researcher, Institute of Development Policy, Antwerp University)
66. Sekombi Katondolo (Director, Radio Mutaani, Goma)
67. Severine Autesserre (Assistant Professor, Barnard College, Columbia University)
68. Thomas Idolwa Tchomba (Consultant and Mining Expert, Goma)
69. Timothy Makori (Researcher, Department of Anthropology, University of Toronto)
70. Timothy Raeymaekers (Lecturer in Political Geography, University of Zurich)
71. Yvette Mwanza (President of the Mining Committee, Federation des Entreprises Congolaises North Kivu)
72. Zacharie Bulakali (Independent Researcher on mining in eastern Congo)
All the signatories listed express their support to the open letter in its above form but not necessarily approve of accompanying opinion pieces and/or explanatory notes, which remain their respective authors' views.
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Mr. HUIZENGA of Michigan. Mr. Chair, I yield back the balance of my time.
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Mr. HUIZENGA of Michigan. Will the gentleman yield?
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Mr. HUIZENGA of Michigan. I appreciate the gentleman yielding.
I maybe, possibly like yourself, have occasional differences with my own church denomination. I have challenged them to talk to their own missionaries that are in the surrounding areas, whom I have talked to, who are also out on the coast, who are now seeing minerals exported.
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Mr. HUIZENGA of Michigan. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, my amendment would prohibit any funds from being used by the SEC to implement, administer, or enforce the ineffective pay ratio disclosure mandate in section 953(b) of the Dodd-Frank Act.
Under Dodd-Frank, section 953(b) requires all publicly traded companies to calculate and disclose, for each filing with the SEC, the median annual total compensation of all employees of the company, excluding the CEO, disclose the annual total compensation of the CEO, and calculate and disclose a ratio comparing those two numbers.
In adopting the final rule, the SEC admitted that the pay ratio disclosure provides ``no quantifiable benefit to public shareholders, yet it will cost public companies billions of dollars in initial and ongoing compliance expenses that could otherwise be used for investment in equipment and in job creation.''
While the SEC provided modest flexibility in the final rule as compared to its initial proposal, the final rule did not mitigate the most significant burdens that the public companies will face as they collect and calculate the compensation information necessary to comply.
Companies must still all include all employees--including temporary, part-time, seasonal employees--and non-U.S. employees into their pay ratio calculation. The rule's 5 percent exclusion for non-U.S. employees, which includes any foreign employee whose salary data is protected by their home country privacy laws, will not defray the significant compliance costs, which the SEC estimates at $1.3 billion in initial compliance costs and $526 million on an ongoing annual cost basis.
Even the former Financial Services chairman, Barney Frank, acknowledged that burden before a September 24, 2010, hearing, stating: ``I would note, again, that it was a Senate provision, and I think our inclination is to see to what extent it can be lessened as a burden, and, if not, we would be able to work and try to change that next year.''
That was almost 6 years ago, Mr. Chairman. During that same hearing, the Democratic witness, Mr. Martin Baily of the Squam Lake Group, stated: ``I am quite concerned about the level of poverty in the United States. I am quite concerned about the fact that ordinary workers have not done very well in the last few years. I don't see how publishing that ratio helps anybody very much, so I am not a big fan of that.''
Amen. I could not agree more, Mr. Baily.
In his dissent, SEC Commissioner Gallagher stated: ``Addressing perceived income inequality is not the province of the securities laws or the Commission.''
Additionally, SEC Chair Mary Jo White has expressed similar concerns about the provision of the Dodd-Frank Act, noting that several provisions ``appear more directed at exerting societal pressure on companies to change behavior rather than to disclose financial information that primarily informs investments decisions.''
Again, I could not agree more, Mr. Chairman.
This useless disclosure requirement creates a number of lengthy and burdensome reporting obligations whose costs far outweighs any perceived benefits. This includes failing to provide shareholders with useful information or facilitate a better understanding of pay practices, which some falsely trumpet this provision would do.
Mr. Chairman, we are all concerned about creating more jobs in our various congressional districts, and instead of companies being forced to spend millions of dollars trying to comply with a regulatory mandate for which the SEC has been unable to quantify any benefits to the public, shouldn't these burdensome costs, instead, be converted and used by manufacturers, retailers, and other public companies for much- needed investment and job creation? I think so. I urge my colleagues on both sides of the aisle to vote in favor of this amendment.
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Mr. HUIZENGA of Michigan. Mr. Chairman, may I inquire of the remaining time on both sides.
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Mr. HUIZENGA of Michigan. And I believe I have the right to close; correct?
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Mr. HUIZENGA of Michigan. Mr. Chairman, first of all, I would like to point out to my colleague from New York that he is actually wrong. We marked this bill up in committee in April of this year.
And the interesting thing, Mr. Chairman, is they want it both ways. We have to follow the SEC until they don't want to do it, and then they disagree with it. They disagree with the statement that the SEC apparently has come up with that this is going to cost $1.7 billion in this initial year.
They want to say that the Obama economy is great--until it isn't and it doesn't work in their favor.
I, too, am very concerned and join my colleagues of all stripes to say that this economy has not responded the way it needs to and we need to have those wages up. And here we are robbing Peter to pay Paul, because we are going to take that money that could go into investing in equipment and productivity and actual workers, and we are going to do meaningless reports to this that tell us nothing. And the words of the SEC Chair--not my words, the SEC Chair--says that this brings no meaningful information to people in the economy.
So I don't understand why, other than window dressing, once again, and trying to set up a straw man argument, for why the businesses are doing what they are doing, why they would move ahead.
Mr. Chairman, I yield back the balance of my time.
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